NCA (National Committee on Accreditation) Exam — Questions and Answers

Question 1: Which case established that the Canadian Senate could not be fundamentally changed or abolished without following the general (7/50) or unanimity amending formula?

OPSEU v. Ontario [1987]
Reference re Supreme Court Act, ss. 5 and 6 [2014]
Reference re Senate Reform [2014] (Correct answer)
Reference re Secession of Quebec [1998]

Correct answer: Reference re Senate Reform [2014]

In Reference re Senate Reform [2014] the SCC held that the federal government could not unilaterally impose term limits, abolish the Senate, or establish a consultative election process without provincial consent under s. 38 or s. 41 of the Constitution Act, 1982.

Question 2: Under the Ontario Rules of Civil Procedure, what is an 'undertaking' given at an examination for discovery, and what obligation does it create?

A formal promise to pay the opposing party's legal costs if the claim fails
A promise to appear at trial on a specified date
A promise given by counsel to provide additional information or documents after the examination; it is binding and must be fulfilled by the deadline set or agreed upon (Correct answer)
An agreement to settle the proceeding that is binding on the parties

Correct answer: A promise given by counsel to provide additional information or documents after the examination; it is binding and must be fulfilled by the deadline set or agreed upon

At examinations for discovery, counsel frequently undertake to provide answers to questions the witness cannot answer at the time, to produce additional documents, or to obtain information. Undertakings are binding on counsel personally and on the party, and must be fulfilled within the agreed time.

Question 3: The Quebec Civil Code approach to trusts (fiducie) differs from common law trusts in which fundamental way?

Quebec trusts cannot hold immovable property
In Quebec, the trust creates a separate autonomous patrimony held by the trustee, with no one being the 'owner' of the trust property in the way a common law trustee is; the property does not belong to the settlor, trustee, or beneficiaries (Correct answer)
Quebec trusts require a court order to create
The beneficiary of a Quebec trust holds legal title to the trust property

Correct answer: In Quebec, the trust creates a separate autonomous patrimony held by the trustee, with no one being the 'owner' of the trust property in the way a common law trustee is; the property does not belong to the settlor, trustee, or beneficiaries

Under CCQ art. 1261, the trust patrimony is an autonomous patrimony that belongs to no one—not the settlor, trustee, or beneficiaries. This differs radically from the common law trust where the trustee holds legal title and the beneficiary holds equitable title. The Quebec trust is a patrimony by appropriation.

Question 4: Under the LSO's rules, which type of fee arrangement requires particularly careful management and disclosure to the client?

Contingency fee agreements, which must be in writing, must disclose the percentage and calculation method, and must comply with provincial regulation (Correct answer)
Flat-fee arrangements for transactional work
Legal aid tariff fees
Hourly billing arrangements

Correct answer: Contingency fee agreements, which must be in writing, must disclose the percentage and calculation method, and must comply with provincial regulation

Contingency fee agreements are regulated by provincial legislation (e.g., Ontario's Solicitors Act) and the LSO's rules. They must be in writing, must clearly disclose the percentage, the calculation method (gross or net of expenses), disbursements, and termination provisions. Some provinces cap contingency fees.

Question 5: What test does the SCC apply to determine whether a reasonable apprehension of bias exists against an administrative decision-maker?

Whether an informed person, viewing the matter realistically and practically, would think it more likely than not that the decision-maker would not decide fairly (Correct answer)
Whether the decision-maker has previously ruled against the applicant
Whether the decision-maker has a personal financial interest in the outcome
Whether the decision-maker expressed any opinion before the hearing

Correct answer: Whether an informed person, viewing the matter realistically and practically, would think it more likely than not that the decision-maker would not decide fairly

The reasonable apprehension of bias test (from R v. S (RD) [1997] and Committee for Justice and Liberty v. National Energy Board [1978]) asks whether an informed, reasonable observer would conclude there is a real possibility the decision-maker was biased. It is an objective test.

Question 6: What is the 'right to counsel' under section 10(b) of the Charter and what are its informational and implementational components?

It only applies after formal charges are laid
It only applies in criminal trials, not at the point of arrest
Upon arrest or detention, the person must be informed of their right to counsel without delay (informational), and the police must provide a reasonable opportunity to contact counsel and must refrain from eliciting evidence until the person has done so (implementational) (Correct answer)
It means the government must provide a free lawyer in all cases

Correct answer: Upon arrest or detention, the person must be informed of their right to counsel without delay (informational), and the police must provide a reasonable opportunity to contact counsel and must refrain from eliciting evidence until the person has done so (implementational)

Section 10(b) has two components: (1) Informational — the detainee must be promptly informed of the right to retain and instruct counsel, including the availability of Legal Aid and duty counsel; (2) Implementational — police must provide a reasonable opportunity to contact counsel, refrain from questioning or eliciting evidence until the right is exercised, and cease questioning if the detainee exercises their right. Violations may lead to exclusion of evidence under s.24(2).

Question 7: What is a lawyer's duty when they become aware that their client intends to commit a future crime?

The lawyer must assist the client because of the duty of loyalty
The lawyer must attempt to dissuade the client; if unsuccessful, they must withdraw from the representation and may, in certain circumstances involving serious bodily harm or death, disclose information to prevent the crime under the 'future harm' exception (Correct answer)
Report it to the police immediately in all cases
The lawyer should do nothing because of solicitor-client privilege

Correct answer: The lawyer must attempt to dissuade the client; if unsuccessful, they must withdraw from the representation and may, in certain circumstances involving serious bodily harm or death, disclose information to prevent the crime under the 'future harm' exception

A lawyer must not assist a client in committing a crime. If the client discloses an intention to commit a crime, the lawyer should attempt to dissuade them. If unsuccessful, the lawyer must withdraw. The Model Code permits (but does not require) disclosure of confidential information when there is an imminent risk of death or serious bodily harm — the 'future harm' exception. This is the primary exception to confidentiality.

Question 8: In Canadian public law research, the 'Canada Gazette' serves what purpose?

It contains all federal court decisions
It publishes consolidated versions of all federal statutes
It is the official government publication for federal regulations, orders-in-council, and government notices; Part II contains statutory instruments (regulations) (Correct answer)
It is the official record of parliamentary debates

Correct answer: It is the official government publication for federal regulations, orders-in-council, and government notices; Part II contains statutory instruments (regulations)

The Canada Gazette is the official newspaper of the Government of Canada. Part I publishes proposed regulations and government notices for public comment. Part II publishes statutory instruments (regulations, orders in council) that have been officially enacted. Part III publishes newly enacted federal Acts.

Question 9: An applicant for judicial review argues that a tribunal's decision is reasonable but that the tribunal breached procedural fairness. How should the court approach this?

The court should only address procedural fairness if the decision is also substantively unreasonable
It should apply reasonableness review to both the merits and the procedural fairness issue
Procedural fairness is reviewed on its own framework (correctness), separate from the merits review under Vavilov (Correct answer)
Procedural fairness grounds are only available in criminal proceedings

Correct answer: Procedural fairness is reviewed on its own framework (correctness), separate from the merits review under Vavilov

Post-Vavilov, procedural fairness remains a stand-alone ground reviewed on a correctness-like standard—courts ask whether the process was fair, without deference. This is entirely separate from the Vavilov reasonableness framework applicable to the merits.

Question 10: Under the LSO's Rules, a lawyer in Ontario who holds client funds in trust must:

Hold cash from clients personally and record it in a private ledger
Deposit them in the lawyer's general business account for convenience
Invest them in government bonds to earn interest for the law firm
Maintain them in a designated trust account separate from the lawyer's own funds, in a bank or other approved institution, and account for them promptly (Correct answer)

Correct answer: Maintain them in a designated trust account separate from the lawyer's own funds, in a bank or other approved institution, and account for them promptly

Rule 3.2 and the LSO's accounting rules require lawyers to maintain client funds in a designated trust account separate from their own money, at an approved financial institution. Mixing client and personal funds ('co-mingling') is a serious breach that can lead to disbarment.

Question 11: Under the Canadian Criminal Code, what are the two essential elements (actus reus and mens rea) required for most criminal offences?

The actus reus (guilty act — the prohibited conduct or omission) and the mens rea (guilty mind — the required mental state, such as intent, knowledge, recklessness, or wilful blindness) (Correct answer)
A motive and an opportunity
A victim's complaint and a police investigation
A confession and physical evidence

Correct answer: The actus reus (guilty act — the prohibited conduct or omission) and the mens rea (guilty mind — the required mental state, such as intent, knowledge, recklessness, or wilful blindness)

Canadian criminal law generally requires both actus reus (the prohibited act, conduct, or omission plus any required circumstances and consequences) and mens rea (the mental element — which may be subjective intent, knowledge, recklessness, or wilful blindness depending on the offence). Some regulatory offences use strict or absolute liability, requiring no mens rea or limited mens rea.

Question 12: In the law of torts, the 'eggshell skull' rule (thin skull rule) provides that:

The defendant must have known of the plaintiff's vulnerability to be liable
A defendant is only liable for foreseeable harm
A defendant must take the plaintiff as found and is liable for the full extent of harm even if the plaintiff's particular vulnerability was unforeseeable (Correct answer)
A plaintiff who is especially vulnerable cannot recover more than an ordinary plaintiff would

Correct answer: A defendant must take the plaintiff as found and is liable for the full extent of harm even if the plaintiff's particular vulnerability was unforeseeable

The thin skull (eggshell skull) rule holds that a tortfeasor takes the victim as they find them. If the defendant's negligent act triggers an unforeseeable injury due to the plaintiff's pre-existing condition, the defendant is liable for the full extent of harm. This is distinct from the 'crumbling skull' doctrine.

Question 13: What is the test for criminal negligence in Canada as distinct from civil negligence?

Criminal negligence requires intent to cause harm
Criminal negligence only applies to motor vehicle offences
Criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances, showing wanton or reckless disregard for the lives or safety of others (Correct answer)
They are the same test

Correct answer: Criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances, showing wanton or reckless disregard for the lives or safety of others

Criminal negligence (s.219 Criminal Code) requires a 'marked and substantial departure' from the standard of a reasonable person, demonstrating 'wanton or reckless disregard' for lives or safety. This is a higher threshold than civil negligence (simple departure from reasonable care) or penal negligence (marked departure). It can ground charges of criminal negligence causing death (s.220) or bodily harm (s.221).

Question 14: The principle of 'legal writing clarity' in Canadian legal practice requires that drafting avoid which common error?

Using plain English instead of legal terminology
Nominalizations (turning verbs into nouns), excessive passive voice, and unclear pronoun references that obscure the actor and action (Correct answer)
Using numbered lists in legal memoranda
Including citations in the body of legal opinions

Correct answer: Nominalizations (turning verbs into nouns), excessive passive voice, and unclear pronoun references that obscure the actor and action

Effective Canadian legal writing requires clear, direct prose. Common errors include nominalizations ('make a determination' instead of 'determine'), excessive passive voice ('it was decided by the court' instead of 'the court decided'), and unclear pronoun references. Plain language principles are increasingly required in Canadian legal documents.

Question 15: What is the 'Charter voir dire' and how does it relate to the exclusion of evidence under section 24(2)?

A French-language court proceeding
A procedure for selecting jury members
A hearing about the accused's mental fitness to stand trial
A hearing within a trial where the accused argues that evidence was obtained in violation of their Charter rights and should be excluded if its admission would bring the administration of justice into disrepute (Correct answer)

Correct answer: A hearing within a trial where the accused argues that evidence was obtained in violation of their Charter rights and should be excluded if its admission would bring the administration of justice into disrepute

A Charter voir dire is a hearing (trial within a trial) where the accused argues evidence should be excluded under s.24(2) because it was obtained in a manner that infringed a Charter right. The court applies the Grant framework (R v Grant, 2009): (1) seriousness of the Charter-infringing conduct, (2) impact on the accused's Charter-protected interests, and (3) society's interest in adjudication on the merits.

Question 16: The SCC held in Reference re Secession of Quebec [1998] that Canadian constitutional law is underpinned by four unwritten principles. Which of the following is NOT one of those four principles?

Democracy
Federalism
Parliamentary sovereignty (Correct answer)
Constitutionalism and the rule of law

Correct answer: Parliamentary sovereignty

The four foundational unwritten principles identified in the Secession Reference are: federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Parliamentary sovereignty is a British concept that does not hold in Canada where the constitution is supreme.

Question 17: In which situation does the Canadian Charter of Rights and Freedoms apply?

Only to federal government action, not provincial governments
To government action, including legislation and acts of government actors (Correct answer)
Only to criminal proceedings
To all private disputes between individuals

Correct answer: To government action, including legislation and acts of government actors

Section 32 of the Charter limits its application to Parliament and the legislatures, and to the government of Canada and provinces. The Charter does not directly bind private parties, though it can influence common law development in private disputes.

Question 18: Which Canadian case established the principle that courts should interpret legislation to avoid 'absurd' results?

R v. Morgentaler [1988]
Bell ExpressVu LP v. Rex [2002]
Rizzo & Rizzo Shoes Ltd. (Re) [1998] (Correct answer)
Reference re Firearms Act [2000]

Correct answer: Rizzo & Rizzo Shoes Ltd. (Re) [1998]

In Rizzo & Rizzo Shoes [1998] the SCC applied the modern principle of interpretation and specifically noted that an interpretation producing absurd results—irrational or illogical consequences—should be avoided. The Court rejected a literal interpretation of the Employment Standards Act that would have denied employees of bankrupt employers their statutory rights.

Question 19: What remedies are available for breach of contract in Canadian common law?

Only the right to terminate the contract
Only monetary damages
Damages (expectation, reliance, restitution), specific performance, injunctions, rescission, and in some cases, quantum meruit — the primary remedy is expectation damages to put the innocent party in the position they would have been in had the contract been performed (Correct answer)
Only punitive damages

Correct answer: Damages (expectation, reliance, restitution), specific performance, injunctions, rescission, and in some cases, quantum meruit — the primary remedy is expectation damages to put the innocent party in the position they would have been in had the contract been performed

The primary remedy is expectation damages (putting the innocent party in the position they would have been in had the contract been performed). Other remedies include: reliance damages (restoring the pre-contract position), restitution (preventing unjust enrichment), specific performance (compelling performance — available when damages are inadequate, commonly for unique goods or real property), injunctions, and rescission.

Question 20: The doctrine of res ipsa loquitur ('the thing speaks for itself') in Canadian negligence law:

Shifts the burden of proof entirely to the defendant to disprove negligence
Permits an inference of negligence when an accident is of a kind that ordinarily does not occur without negligence and the defendant had control over the instrumentality causing harm (Correct answer)
Has been abolished by the SCC and replaced with ordinary res ipsa principles
Automatically establishes liability whenever an accident occurs

Correct answer: Permits an inference of negligence when an accident is of a kind that ordinarily does not occur without negligence and the defendant had control over the instrumentality causing harm

The SCC in Fontaine v. ICBC [1998] clarified that res ipsa loquitur is not a distinct rule but is simply an evidentiary inference. When an accident is of a kind that ordinarily does not occur without negligence, and the defendant had control, the court may infer negligence. The defendant can rebut by providing an explanation.

Question 21: Under the CCQ, what are the essential conditions for a valid contract?

Offer, acceptance, consideration, and written form
Capacity, writing, notarization, and registration
Offer, acceptance, and consideration
Capacity of the parties, consent that is free and enlightened, and an object that is not prohibited by law (Correct answer)

Correct answer: Capacity of the parties, consent that is free and enlightened, and an object that is not prohibited by law

CCQ art. 1385 identifies three essential conditions for a valid contract: (1) the capacity of the parties to contract; (2) consent that is free and enlightened; (3) an object (cause) that is not prohibited by law or contrary to public order. Notably, consideration is not required in Quebec civil law.

Question 22: What is the 'parol evidence rule' in Canadian contract law?

A rule that verbal contracts are never enforceable
When a contract has been reduced to a final written form, extrinsic evidence generally cannot be used to add to, vary, or contradict its terms, subject to exceptions such as ambiguity, fraud, mistake, or collateral agreements (Correct answer)
A rule requiring all evidence to be presented verbally in court
A rule requiring all contracts to be witnessed

Correct answer: When a contract has been reduced to a final written form, extrinsic evidence generally cannot be used to add to, vary, or contradict its terms, subject to exceptions such as ambiguity, fraud, mistake, or collateral agreements

The parol evidence rule prevents parties from introducing external evidence to contradict or vary the terms of a written contract that appears to be complete (an 'integrated' agreement). Exceptions include: interpreting ambiguous terms, establishing fraud, duress, or mistake, proving a condition precedent, establishing a collateral agreement, or proving subsequent variation. The rule protects the certainty of written agreements.

Question 23: What are the rules regarding a lawyer's duty of 'competence' under the Model Code?

A lawyer is automatically competent in all areas of law upon admission
Competence is only measured by years of experience
A lawyer must perform all legal services to the standard of a competent lawyer, which includes knowledge, skill, diligence, and judgment, and must not undertake matters beyond their competence without adequate preparation or association with a competent lawyer (Correct answer)
A lawyer only needs to be competent at the time of being called to the bar

Correct answer: A lawyer must perform all legal services to the standard of a competent lawyer, which includes knowledge, skill, diligence, and judgment, and must not undertake matters beyond their competence without adequate preparation or association with a competent lawyer

The duty of competence is ongoing and multi-dimensional. It includes: sufficient knowledge of the relevant law, skill to apply that knowledge, the ability to investigate facts and identify issues, diligent and timely handling of the matter, and sound professional judgment. A lawyer who lacks competence in a particular area must decline the retainer, acquire the necessary competence through study, or associate with a competent lawyer.

Question 24: Under Canadian professional conduct rules, a lawyer who discovers that their client has committed perjury during the proceeding must:

Complete the case and report the perjury to the law society after the matter concludes
Maintain confidentiality and continue representing the client without addressing the perjury
Immediately report the perjury to the court without consulting the client
Take steps to rectify the situation, which may include advising the client to correct the testimony, and if the client refuses, the lawyer may have to withdraw and potentially take other remedial steps (Correct answer)

Correct answer: Take steps to rectify the situation, which may include advising the client to correct the testimony, and if the client refuses, the lawyer may have to withdraw and potentially take other remedial steps

When a lawyer discovers client perjury, the obligations under the rules require the lawyer to: (1) attempt to persuade the client to correct the false testimony; (2) if the client refuses, consider withdrawal; (3) the lawyer must not continue to actively assist in the perjury or mislead the court. Reporting to the court directly is generally not required absent specific rules.

Question 25: What is the 'right to be tried within a reasonable time' under section 11(b) of the Charter, as reframed by R v Jordan (2016)?

The right only applies to summary conviction offences
Trials must be completed within 6 months of arrest
There is no specific time limit — it depends on the complexity of the case
The SCC established presumptive ceilings of 18 months for provincial court cases and 30 months for superior court cases; delays exceeding these are presumptively unreasonable unless the Crown demonstrates exceptional circumstances (Correct answer)

Correct answer: The SCC established presumptive ceilings of 18 months for provincial court cases and 30 months for superior court cases; delays exceeding these are presumptively unreasonable unless the Crown demonstrates exceptional circumstances

R v Jordan (2016) fundamentally changed the s.11(b) framework. The SCC established presumptive ceilings: 18 months for cases in provincial court and 30 months for cases in superior court (or cases in provincial court after a preliminary inquiry). If delay exceeds the ceiling, it is presumptively unreasonable unless the Crown proves exceptional circumstances. Below the ceiling, the defence must show the delay is markedly departed from reasonable.

Question 26: When drafting a legal opinion letter in Canada, the lawyer should ensure the letter:

Is addressed to the court and opposing counsel simultaneously
Contains a guarantee of outcome if the client follows the advice
Contains no qualifications or caveats so as not to undermine the client's confidence
Clearly identifies the question addressed, the facts assumed, the applicable law, the analysis, and the opinion, along with appropriate qualifications and limitations (Correct answer)

Correct answer: Clearly identifies the question addressed, the facts assumed, the applicable law, the analysis, and the opinion, along with appropriate qualifications and limitations

A legal opinion letter must be precise about: (1) the question(s) being addressed; (2) the facts on which the opinion is based; (3) relevant law; (4) the analysis; (5) the opinion itself; and (6) qualifications (e.g., reliance on facts provided, jurisdiction, date). It must not guarantee outcomes.

Question 27: In legal writing, a 'factum' in Canadian courts refers to:

A formal statement of claim in a civil proceeding
A statement of admitted facts in a trial proceeding
Minutes of settlement agreed to by the parties
A written legal argument submitted to an appellate court that sets out the facts, issues, law, and submissions of a party (Correct answer)

Correct answer: A written legal argument submitted to an appellate court that sets out the facts, issues, law, and submissions of a party

A factum (plural: facta) is the written advocacy document submitted to Canadian appellate courts. It contains: a statement of facts, issues in dispute, the applicable law and argument, and the requested relief. Rules of court prescribe its format, page limits, and content.

Question 28: Which Supreme Court of Canada decision established that a corporation can hold s. 7 Charter rights?

Irwin Toy Ltd. v. Quebec [1989]
Reference re Same-Sex Marriage [2004]
Corporations do not hold s. 7 rights under Canadian law (Correct answer)
R v. Big M Drug Mart Ltd. [1985]

Correct answer: Corporations do not hold s. 7 rights under Canadian law

The SCC confirmed in Irwin Toy Ltd. v. Quebec [1989] that corporations cannot hold s. 7 rights because those rights protect biological life, liberty, and security—interests only natural persons can hold. Corporations may hold other Charter rights (e.g., s. 2(b)).

Question 29: Section 6 of the Charter guarantees mobility rights. Which right does s. 6(2) specifically protect?

The right of citizens and permanent residents to move and take up residence in any province and to pursue a livelihood in any province (Correct answer)
The right of refugees to move between provinces without restriction
The right of citizens to enter, remain in, and leave Canada
The right to work in any province without professional licensing requirements

Correct answer: The right of citizens and permanent residents to move and take up residence in any province and to pursue a livelihood in any province

Section 6(2) protects the rights of citizens and permanent residents to move and take up residence in any province and to pursue a livelihood there. This right is subject to s. 6(3) exceptions for laws of general application and affirmative action programs.

Question 30: Which provision of the Charter allows Parliament or a provincial legislature to enact legislation that operates notwithstanding ss. 2 and 7–15 of the Charter?

Section 24
Section 38
Section 1
Section 33 (Correct answer)

Correct answer: Section 33

Section 33 is the 'notwithstanding clause,' permitting legislatures to declare a law operates notwithstanding ss. 2 and 7–15. It must be renewed every five years and does not apply to democratic rights (ss. 3–5) or mobility rights (s. 6).

Question 31: What is the legal test for establishing the defence of 'not criminally responsible on account of mental disorder' (NCRMD) under section 16 of the Criminal Code?

The accused must prove they have any mental health diagnosis
The judge makes the determination without any medical evidence
The accused must prove, on a balance of probabilities, that at the time of the offence they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong (Correct answer)
The defence only applies to psychotic disorders

Correct answer: The accused must prove, on a balance of probabilities, that at the time of the offence they were suffering from a mental disorder that rendered them incapable of appreciating the nature and quality of the act, or of knowing that it was wrong

Section 16 provides that a person is NCRMD if, at the time of the offence, they suffered from a mental disorder that rendered them incapable of either: (1) appreciating the nature and quality of the act or omission, OR (2) knowing that the act or omission was wrong. The burden is on the party raising the defence (balance of probabilities). If successful, the accused is not acquitted but found NCRMD and subject to a disposition hearing by the Review Board.

NCA (National Committee on Accreditation) Exam

The NCA exams assess internationally trained lawyers seeking accreditation to practice law in Canada, testing knowledge across core areas of Canadian law including constitutional law, criminal law, professional responsibility, and legal research.

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